5.  The applicant was born in 1971 and lives in Willich.
6.  On 19 December 2003 the applicant married Ms D. The couple separated in June 2004. In July 2004 Ms D. informed the applicant that she was pregnant. The couple divorced on 12 November 2004.
7.  On 5 March 2005 Ms D. gave birth to a daughter, M.
8.  On 5 May 2006 the applicant wrote a letter to Ms D., indicating that he wished to have access to the child and to acknowledge paternity.
9.  On 16 May 2006 Mr E., with the consent of Ms D., acknowledged paternity of the child before the Youth Office. On 20 June 2006 the applicant declared in a document certified by a notary that he acknowledged paternity of the child.
10.  On 5 July 2006 the applicant lodged an action with the Bielefeld District Court (Amtsgericht) to have his paternity established, submitting that he had had sexual intercourse with the child’s mother during the period of conception. Ms D. replied that Mr E. was the biological father and that he lived with the child and herself in a social and family relationship.
11.  On 18 August 2006 Mr E. and Ms D. got married. The couple live together with the child M. and with two further children, born in June 2006 and May 2008.
12.  On 22 August 2006 the applicant further requested the District Court to establish that Mr E. was not the child’s father and submitted a statutory declaration that he had had sexual intercourse with the child’s mother during the time of conception.
13.  On 24 August 2006, during a first hearing, the District Court informed the parties that a guardian ad litem should be appointed to represent the child’s interests, as a conflict of interests had arisen due to the fact that Mr E. and Ms D. had married. Ms D. declared that the applicant was not the child’s father.
14.  On 30 August 2006 the District Court judge submitted the case file to the judicial officer in charge of appointing guardians (Rechtspfleger). On 10 October 2006 the judicial officer refused to appoint a guardian.
15.  On 31 October 2006 the District Court instituted separate proceedings aimed at appointing a guardian ad litem. On 27 November 2006 the Youth Office submitted their comments. On 30 January 2007 the District Court appointed a guardian ad litem to represent the child in the pending proceedings and also in case the child should lodge an action in her own right challenging paternity.
16.  On 27 February 2007 Mr. E and Ms. D lodged an appeal against the guardian’s appointment. On 28 March 2007 they submitted reasons for their appeal. On 31 May 2007 the applicant requested that the appeal be rejected. On 26 June 2007 the Hamm Court of Appeal (Oberlandesgericht) scheduled a hearing for 11 September 2007 which was postponed on the applicant’s request to 20 September 2007.
17.  On 20 September 2007 the Court of Appeal confirmed the appointment of a guardian, but quashed the District Court’s decision insofar as it concerned the child’s representation in case she should lodge her own action.
18.  On 4 January 2008 the District Court scheduled a hearing for 29 January 2008.
19.  On 24 January 2008 the guardian ad litem submitted his observations to the Regional Court. Following a visit to the family home, he concluded that there existed a strong social and family relationship between the child and Mr E., and considered that it was most important to assure that the child was allowed to grow up undisturbed within her family. On the same day, the District Court cancelled the hearing and invited the parties to submit comments on the guardian’s observations.
20.  On 22 February 2008 the District Court ordered an expert opinion on the question whether a social and family relationship existed between the child and Mr E., and requested the applicant to pay an advance of 1,000 euros (EUR). On 28 March 2008 the District Court reminded the applicant to pay the advance.
21.  On 14 April 2008 the applicant, referring to the guardian’s submissions, conceded that a social and family relationship existed between the child and Mr E. He therefore did not consider it necessary to hear expert opinion in this respect. He contended, however, that his action should be allowed because the applicable legislation did not sufficiently take into account his rights as a parent.
22.  On 24 April 2008 the District Court scheduled a hearing for 29 May 2008.
23.  On 6 May 2008 the District Court, on the applicant’s request, postponed the hearing to 10 June 2008.
24.  On 27 May 2008 the applicant, relying on Article 1598a of the Civil Code as in force since 1 April 2008 (see Relevant domestic law, below), lodged an alternative request to order the child to undergo genetic testing in order to establish her descent.
25.  On 10 June 2008, during the hearing, the parties unanimously declared that a social and family relationship existed between Mr E. and the child. Following the hearing, the District Court rejected the applicant’s request. According to that court, the applicant was precluded from contesting paternity under Article 1600 § 2 of the Civil Code (see Relevant domestic law, below) because a social and family relationship existed between the child and her legal father. He did not have the right to have his paternity established or to demand genetic testing because the child already had a legal father.
26.  On 2 December 2008 the Hamm Court of Appeal rejected the applicant’s appeal lodged on 10 July 2008. It noted that it was no more in dispute between the parties that a social and family relationship existed between the child M. and her legal father, who, in the meantime, had married the child’s mother and fathered two further children. Confirming the District Court’s judgment, that court further considered that the relevant legislation did not violate the applicant’s rights under the German constitution and under Articles 8 and 14 of the Convention. Referring to its own constant case-law and to the case-law of the Federal Constitutional Court, the Court of Appeal considered that the legislature had been entitled to let the interests of the child and of her legal parents prevail over the biological father’s interest to have his paternity legally established and to preclude the biological father from contesting paternity. There was no room for the court to examine in individual cases whether it was necessary in the child’s best interests to allow the presumed biological father to contest paternity. This general approach also protected the concerned families from being forced to reveal intimate details of their family life.
27.  The Court of Appeal further confirmed that the applicant’s request to have his paternity established was inadmissible as the child already had a legal father. Relying on the case-law of the Federal Constitutional Court, the court considered that Mr E.’s acknowledgment of paternity had been valid and that the relevant legislation did not violate the applicant’s constitutional rights. It was, in particular, justifiable to make acknowledgement of paternity dependent on the mother’s consent. The legislature was not obliged to make acknowledgment of paternity dependent on a genetic examination of descent. It was acceptable to base the granting of legal status on an assumption which was based on specific factual and social situations. Such an assumption existed if a man declared in a legally binding way and with the express consent of the mother of a child born out of wedlock that he was willing to assume parental responsibility. The Court of Appeal further considered that the child’s rights were sufficiently protected by her own right to challenge paternity upon reaching the age of majority.
28.  The Court of Appeal further considered that the Constitution protected a man’s interest to learn whether a child was his descendant and to have this fact legally established. However, this did not include the right to examine descent in any conceivable case. When developing the procedure for examining a child’s true descent, the legislature had to take into account the child’s interest in the stability of his legal and social-family affiliation and the mother and child’s interest not to have personal data and intimate circumstances revealed, and had done so in an acceptable way. There was, in particular, no right under the Constitution to have biological descent legally established as long as another man’s legal paternity persisted.
29.  The Court of Appeal finally considered that the applicant’s alternative request to order the child to undergo genetic testing was inadmissible, because such a request had to be lodged in separate proceedings.
30.  On 20 March 2009, following a complaint by the applicant, the Court of Appeal confirmed its judgment of 2 December 2008 and stated that the alternative request to clarify the child’s genetic descent was not inadmissible but unfounded, as Article 1598a of the Civil Code did not entitle the presumed biological father to demand genetic testing. Relying on the Federal Constitutional Court’s case-law, the Court of Appeal considered that the applicant did not have the right to have biological paternity established without establishing legal paternity.
31.  On 30 June 2009 the Federal Constitutional Court, sitting as a panel of three judges, refused to admit the applicant’s constitutional complaint for adjudication. This decision was served on the applicant’s counsel on 8 July 2009.